UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. JOSE ALVAREZ, Defendant - Appellant. No. 18-8045 (D.C. Nos. 1:15-CV-00172-SWS & 1:10-CR-00203-SWS-1) (D. Wyo.)

________________ _________________ ORDER DENYING CERTIFICATE OF APPEALABILITY *

________________ _________________ Before HARTZ , MATHESON , and McHUGH , Circuit Judges.

________________ _________________ Jose Alvarez, a federal prisoner proceeding pro se, seeks a cer tificate of appealability (COA) to appeal the d istrict court’s decision den ying in part and dismissing in part his motion for relief under Fed. R. Civ. P. 60(b). We deny a COA and dismiss this

matter. Mr. Alvarez was convicted of cons piracy to possess with intent to distribute, and to distribute, methamphetamine, c ocaine and marijuana. He was sentenced to 360 months in prison. On direct appeal, we affirmed his sentence. United States v. Alvarez , 565 F. App’x 709, 710 (10th Ci r. 2014). He later filed a pro s e motion under 28 U.S.C.

* This order is not binding prec edent except under the doctrines of law of the case, res judicata, and collateral esto ppel. It may be cited, howeve r, for its persuasive value consistent with Fed. R. App. P . 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### August 23, 2018
Elisabeth A. Shumaker Clerk of Court2 § 2255, which the district cour t denied. This court dismissed Mr. Alvarez’s attempt to appeal from that decision because his notice of appeal was not timely filed. Earlier this year, Mr. Alvarez file d a Rule 60(b) motion in whi ch he argued that (1) the government committed fra ud on the court in its response to his § 2255 motion; and (2) he should not h ave been designated as a career offender because two of his prior convictions were improperly coun ted as qualifying predicate off enses. The district court denied the first claim. It then determined that the second cla im was an unauthorized second or successive § 2255 claim and dismissed it for lack of jurisdiction. Mr. Alvarez now seeks a COA to appeal from th e district court’s decision. To obtain a COA from the distr ict court’s procedural rulings, M r. Alvarez must show “that jurists of reason woul d find it debatable whether th e petition states a valid claim of the denial of a constitu tional right and that jurists of reason would find it debatable whether the district court was correct in its procedu ral ruling.” Slack v.
McDaniel , 529 U.S. 473, 484 (2000). 1 A prisoner may not file a second or successive § 2255 motion un less he first obtains an order from the circuit court authorizing the distric t court to consider the motion. 28 U.S.C. § 2244(b)(3)(A); id . § 2255(h). Absent such a uthorization, a district

1 We have explained that the denia l of a Rule 60(b) motion in th e context of a habeas petition is a procedural ruling subject to Slack ’s two-part COA standard. Dulworth v. Jones , 496 F.3d 1133, 113 8 (10th Cir. 2007), abrogated in part by Harbison v. Bell , 556 U.S. 180 (2009). The distric t court’s decision to constr ue a pleading as a second or successive § 2255 claim and to dismiss it for lack of jurisdiction is also a procedural ruling subject to the Slack standard. See United States v. Harper , 545 F.3d 1230, 1233 (10th Cir. 2008).3 court lacks jurisdiction to addr ess the merits of a second or s uccessive § 2255 motion.
In re Cline , 531 F.3d 1249, 1251 (10t h Cir. 2008) (per curiam). A Rule 60(b) motion should be treated as a second or successive § 2255 motion “if it in substance or effect asserts or reasserts a federal basis for relief from the petitioner’s underlying conviction.” Spitznas v. Boone , 464 F.3d 1213, 1215 (10th Cir. 2006). A Rule 60(b) motion may not be t reated as a successive § 2255 mot ion if it “challenges a defect in the integrity of the federal habeas proceeding.” Id . at 1216. Mr. Alvarez argued in the first cl aim in his Rule 60(b) motion that there was a defect in the integrity of his § 2255 proceeding because the go vernment had committed fraud on the court in its respons e to his § 2255 motion. In hi s § 2255 motion, he asserted a claim for ineffectiv e assistance of counsel based on his atto rney’s failure to convey the government’s plea offer to him . In its response to his motion, the government stated that there was no record of a formal p lea offer. The district court ultimately denied the claim because there was no evidence of a formal plea offer. But Mr. Alvarez contended in his Rule 60(b) motion that documents he obtained through the Freedo m of Information Act showed that there was a plea offer. The district court denied this Ru le 60(b) claim on the merits. The court explained that none of the documents Mr. Alvarez submitted “establishe[d] that the government ever made a formal plea offer that Defendant’s counsel failed t o communicate to him. Rather, the documents simply co nfirm plea negotiations were tak ing place.” R., Vol. 1 at 83. In his COA application, Mr. A lvarez fails to point to anyt hing in the documents he submitted that shows the governme nt made a formal plea offer to his attorney that was4 not communicated to him. The let ter from his attorney that he references indicates that there were ongoing plea negotiati ons but it also indicates that , at that time, Mr. Alvarez wanted to go to trial because the evidence available to his att orney was not conclusive of guilt. His attorney was therefo re requesting in that letter th at he meet with t he prosecutor to go over the evidence and how it was linked to his client. T his letter does not demonstrate that the government committed fraud in its response to Mr. Alvarez’s § 2255 motion. Reasonable jurists woul d not debate the district court ’s resolution of this Rule 60(b) claim. In the second claim of his Rule 60(b) motion, M r. Alvarez asser ted that two of his prior convictions were erroneously treated as predicate offense s to qualify him as a career offender under the sentencing guidelines. In his § 2255 motion , he raised a similar claim, asserting that his counsel was ineffective for failing to resea rch and raise challenges to the use of these two convictio ns to qualify him as a career off ender. The district court rejected the ineffective-assist ance claim in the § 2255 motion after concluding that Mr. Alvarez’s advisory sentencin g guideline range would have be en the same even without the career offender design ation and therefore he could not show prejudice from any alleged deficient performance. In considering this claim in M r. Alvarez’s Rule 60(b) motion, t he district court explained that “[b]ecause the su ccess of Defendant’s claim depe nds on a determination that the Court either incorrectly determined his sentence in th e first instance or erred on the merits in denying his initia l § 2255 motion with respect to this issue, Defendant’s Rule 60(b) motion as to this cla im must be considered a second or successive § 22555 motion.” R., Vol. 1 at 84. In his COA application, Mr. Alvare z appears to be arguing the merits of his claim by “challengi ng his status as a career offe nder” and asserting that “[a] court may look to certain other pieces of evidence in seeking t o ascertain whether [his] conviction was for conduct unde r the guidelines definition.” C OA App. at 8. He fails to address how the court erred in c onstruing this claim as a secon d or successive § 2255 claim. Reasonable jurists could not debate the district court’ s procedural ruling that Mr. Alvarez’s challenge to his status as a career offender is a n unauthorized second or successive § 2255 claim that mus t be dismissed for lack of juri sdiction. Accordingly, we deny a COA and dismiss this matter.

Entered for the Court

ELISABETH A. SHUMAKER, Clerk